Supreme Court Appointments

November 17, 1938

Report Outline
Comming Appointment to Fill Court Vacancy
Brandeis, Hughes, and Parkez Contests
Contests on Earlier Court Appointments
Geographical Composition of the Court

Comming Appointment to Fill Court Vacancy

When the United States Supreme Court convened for its current term, October 3, there was a vacancy in its membership caused by the death last July of Associate Justice Benjamin N. Cardozo. While there is precedent for making a recess appointment to the Court, President Roosevelt is expected to delay filling the vacant seat until Congress reassembles in January, so that the new Justice can be confirmed by the Senate before he ascends the bench. In the meantime, speculation has arisen as to the President's choice of a successor to Justice Cardozo. The individual so far most prominently mentioned for that honor is Professor Felix Frankfurter of the Harvard Law School.

Frankfurter and the Holmes-Cardozo Tradition

The seat vacated by Justice Cardozo was that occupied for 30 years by the late Justice Oliver Wendell Holmes. Those who advocate appointment of Frankfurter contend that he is eminently fitted to carry on the great liberal tradition associated with the names of Holmes and Cardozo. In urging his appointment in a letter to President Roosevelt last August, Senator Norris (Ind., Neb.) said: “There is no man in the public eye who so fully and truly represents the philosophy of government of Justice Oliver Wendell Holmes and his successor, Justice Cardozo, as does Frankfurter… Felix Frankfurter is the most outstanding personality to continue and carry out the judicial philosophy of these great statesmen.”

Holmes himself, recommending appointment of Frankfurter to the Supreme Judicial Court of Massachusetts in 1932, said of him in a letter to the Governor of Massachusetts: “I am quite confident that he is superior in learning and ability to anyone else available and that his character is equal to his gifts.” The justice added: “He has been a dear friend of mine for many years, but I am confident that the judgment I express is not the child but the parent of my affection.” The late Newton D. Baker likewise observed of Frankfurter at this time that “there are few more penetrating or more brilliant minds in the legal profession in America.”

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